WHERE RACE AND THE LAW MEET
by Brando Simeo Starkey

Monday, August 03, 2009

Sotomayor and Affirmative Action

Now it's clear that Sonia Sotomayor will become the first Latina justice on the Supreme Court. But the debate surrounding her has been really interesting. America has not talked about affirmative action, activist judges and the like in a long time. It's been enjoyable although maddening.

Many on the Right have decried Sotomayor's decision in the Frank Ricci New Haven fire fighters case. Throughout the battle, conservatives have stated that they want a justice who is against racial preferences; they prize originalists and not judicial activists.

The funny part of this debate, is that they don't realize the irony in their objections to Sotomayor. The Right has consistently labeled Sotomayor an activist, using her decision in Ricci as a basis for this. To them, racial preferences are as constitutional as was segregation.

The problem is that there is utterly no originalist argument that can be made to show that the Equal Protection Clause of the 14th Amendment bars governmental use of racially sensitive remedial policies. That is to say, the Fourteenth Amendment does not bar affirmative action.

The original understanding of the Fourteenth Amendment was to give blacks the right to contract, own and sell property and the right to be sued and sue. Plessy was right insofar as the Fourteenth Amendment was not intended to stop segregation. After all, the Congress that drafted the amendment was operating segregated schools in Washington D.C. And Brown cannot be substantiated with an originalist argument (I'm no originalist and think Plessy was wrong and Brown was right) . (Michael McConnell tries unsuccessfully in his article Originalism and the Desegregation Decisions 81 Va. L. Rev. 947 to argue that there is an originalist argument supporting Brown; also see Raoul Berger's Government by the Judiciary for a complete analysis of the Fourteenth Amendment). If the original understanding of the Equal Protection Clause does not bar segregation, how can it bar affirmative action? Moreover, before, during and after the Civil War, the federal government appropriated funds for "destitute colored persons" and for "colored" soldiers during the War. And the Freedmen's Bureau, although facially racially neutral, was essentially the federal government's first attempt at addressing the legacy of slavery as the program helped mainly blacks.

Justice Thomas and Scalia often describe how the Constitution is "colorblind." Yet, if you read these two originalists' decisions pertaining to race and the Fourteenth Amendment, they make sure to avoid a historical examination of the post War amendment. This is because it is ludicrous to conclude that the framers intended to stop the government from instituting affirmative action programs.

The only way to conclude that the Constitution is colorblind is to be the activist who those on the Right decry. The lesson to be learned from the case of Sonia Sotomayor is not that conservatives don't want activists; it's that they don't want activists who don't pursue their goals.